The Second Confiscation Act

July 25, 1862 – President Abraham Lincoln issued a proclamation warning southerners to “cease participating in, aiding, countenancing, or abetting the existing rebellion, or any rebellion, against the Government of the United States, and to return to their proper allegiance to the United States, on pain of the forfeitures and seizures” of their property under a controversial law enacted the week before.

Just before adjourning, Congress enacted an amended version of the Confiscation Act of 1861. Unlike the original law, which only provided for freeing slaves actively employed in the Confederate military, this version included provisions for freeing all slaves belonging to anyone with Confederate sympathies.

The law classified all Confederates as “traitors” in accordance with a 1790 statute. These “traitors” had 60 days to stop “aid, countenance, and abet such rebellion, and return to his allegiance to the United States.” If not, “all his slaves, if any, shall be declared and made forever free of their servitude, and not again held as slaves.” This amounted to 90 percent of the slaves in the Confederate states and, to many southerners, validated their accusation that Republicans had sought to free their slaves all along.

According to the measure’s ninth provision:

“That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on (or) being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.”

This finally resolved the issue of whether Federal commanders should allow fugitive slaves to come into their camps.

The freed slaves received no guarantees that their rights would be protected; rather, the president was authorized to deport them to “some tropical country beyond the limits of the United States… such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen.”

Furthermore, if a Confederate did not submit to Federal authority, “the estate and property, moneys, stocks, and credits of such person shall be liable to seizure” by the Federal government for the rest of his life in what was called a “bill of attainder.” Radical Republicans pushed for taking the land “beyond the lives of the guilty parties,” but Lincoln made it known that such a provision would be unconstitutional and spiteful, and he would veto the entire bill if this was not modified.

President Abraham Lincoln | Image Credit: Wikimedia.org

Lincoln insisted on restricting property confiscation to just a person’s lifetime and then allowing ownership to revert to the person’s descendants. Congressional Republicans responded by passing an accompanying resolution declaring that the law was not a bill of attainder, which was prohibited by the Constitution, even though it clearly was.

Slaves escaping from bondage in the loyal slave states (i.e., Delaware, Maryland, Kentucky, and Missouri) would continue to be returned to their masters (if they could prove their loyalty to the U.S.) in accordance with the Fugitive Slave Act. Lincoln hoped this assurance would keep these states in the Union, and that a promise of gradual, compensated emancipation might persuade Virginia and Tennessee to return to the Union.

The House of Representatives estimated that this law could affect six million people and result in the confiscation of $5 billion in property. But it had no effective enforcement mechanism, and its conflicting references to the Confederacy as both a region rebelling against the Federal government (i.e., Confederates were “traitors”) and an independent nation (i.e., slaves were “captives of war”) made its constitutionality extremely dubious. Moreover, Lincoln was in the process of formulating his own emancipation plan under his wartime powers as commander-in-chief, which he believed to be more constitutional than a congressional decree and would do less to hinder Republicans’ chances in the midterm elections. Therefore, several of this law’s provisions went unenforced.

Congressmen speculated that Lincoln might veto the bill. Some feared that the measure would drive the loyal slave states out of the Union. Lincoln submitted a list of objections to the original bill, and the law passed after bitter debate. It was strongly opposed by Democrats and some moderate Republicans, but they could not overcome the majority of other moderate and Radical Republicans in favor.

Senator William P. Fessenden of Maine persuaded Lincoln to sign the bill into law and then send his proposed veto message to Congress, to be recorded for when the law was tested in the courts. This unprecedented move enabled Lincoln to curry favor from both factions of Republicans. In the message, Lincoln stated that “the severest justice may not always be the best policy.” Referring to the provision freeing slaves of Confederates after 60 days, Lincoln declared:

“It is startling to say that Congress can free a slave within a State, and yet, if it were said the ownership of the slave had first been transferred to the nation, and Congress had then liberated him, the difficulty would at once vanish. And this is the real case. The traitor against the General Government forfeits his slave at least as justly as he does any other property; and he forfeits both to the Government against which he offends. The Government, so far as there can be ownership, thus owns the forfeited slaves, and the question for Congress in regard to them is, ‘Shall they be made free or sold to new masters?’”

Lincoln argued that freeing slaves within the states contradicted the Republican Party platform to which Lincoln and the Republicans owed their election. Members of Congress, particularly the Radical Republicans, laughed at the message, confident that Lincoln did not have the nerve to oppose them any longer.

The 60-day countdown began on the 25th, when Lincoln issued his warning for southerners to cease and desist their rebellion. The language was derived from the first draft of Lincoln’s emancipation proclamation, which he had agreed not to release in its entirety until the Federal military gained a victory.

The Second Confiscation Act highlighted the growing political rift between Lincoln and the Radical Republicans in Congress. It also set the stage for later Federal efforts to preserve and reconstruct the Union by destroying the southern way of life.